Last month, retired Army Maj. Gen. James Grazioplene was demoted to second lieutenant after pleading guilty in a civilian court to sexually abusing his daughter when she was a child. However, he was still allowed to continue receiving retirement benefits, albeit at a much lower rank.

Some readers expressed their outrage on social media and in the comment section on Task & Purpose, that Grazioplene had not been stripped of all his benefits. But existing federal law does not give the Defense Department or the Army the authority to take away all of Grazioplene’s benefits because he was not convicted and dismissed as a result of a court-martial, experts said.

“In accordance with federal law, a civilian criminal conviction generally does not impact a military pension of a retiree,” Army spokesman Lt. Col. Gabriel Ramirez said. “There are rare exceptions, such as civilian criminal convictions for treason, espionage, and sabotage, which prohibit the retiree from receiving retired pay.”

Under Title 10 of the U.S. Code, the only way that the military could have taken away Grazioplene’s retirement benefits entirely would have been if he had been court-martialed and dismissed from the Army, said retired Air Force Lt. Col. Rachel VanLandingham, a former military attorney.

“It’s part of being dismissed: You’re dropped from the rolls and you’re no longer an officer, a retired officer drawing retired pay,” said VanLandingham, who teaches at Southwestern Law School in Los Angeles.

The military does not have any legal authority to dismiss Grazioplene administratively and the military’s highest court has made it impossible for the Army to court-martial Grazioplene, VanLandingham said.

Grazioplene’s case shows just how difficult it is for the military to court-martial retirees. His daughter first told Army investigators in 2015 that Grazioplene abused her for a 15-year period starting when she was 3 years old.

In 2017, the Army attempted to prosecute Grazioplene under the Uniform Code of Military Justice for allegations that he had raped a child in the 1980s, even though Grazioplene had retired in 2005.

But in February 2018, the U.S. Court of Appeals for the Armed Forces ruled that rape charges have a five-year statute of limitations under a poorly worded law passed by Congress decades earlier. That led the Army to dismiss charges against Grazioplene the following month, but he was indicted for incest and rape that December in Virginia.

Federal law requires that commissioned officers be retired at the highest grade in which they served satisfactorily for at least six months, VanLandingham said.

Regarding Grazioplene: “They looked at when the allegations of sexual assault started; they must have started at some point after he had been a second lieutenant for six months,” VanLandingham said.

Absent a court-martial conviction, the military also does not have the power to take away Grazioplene’s commission as an officer, said retired Marine Lt. Col. Gary Solis, a former military lawyer and judge.

“I have little doubt that, were it left to any superior officer, Grazioplene’s second lieutenant’s commission would also have been revoked, but such a loss of grade can only be carried out by a court-martial’s punitive sentence, ratified by Congress,” Solis said. “Congress appoints officers to their military grades; only Congress can nullify their appointments.”

Featured image: Then-Brig. Gen. James J. Grazioplene. (U.S. Army)